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HomeMy WebLinkAboutResolution - 2006-R0310 - Contract - Lubbock Metropolitan Planning Org & TXDOT - Roles_Responsibilities - 06_26_2006Resolution No. 2006—RO310 June 26, 2006 Item No. 5.20 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Contract outlining roles and responsibilities of each organization, by and between the City of Lubbock, the Lubbock Metropolitan Planning Organization, and the Texas Department of Transportation, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 26th day of June , 2006. I ATTEST: Reb cca Garza, City Secretary APPROVED AS TO CONTENT: Lee Ann Dumbauld, City Manager APPROVED AS TO FORM: M. Knight, gs/ccdocs/Contracr-Lub Metropolitan Planning Org&Dept of transp.res June 13, 2006 Resolution No. 2006—RO310 June 26, 2006 Item No. 5.20 2 THE STATE OF TEXAS** 3 4 THE COUNTY OF TRAVIS ** 5 6 THIS CONTRACT IS MADE by and between the State of Texas, acting by and through the 7 Texas Department of Transportation, hereinafter called "the Department," the Lubbock 8 Transportation Policy Committee, and the City of Lubbock, which has been designated the 9 Metropolitan Planning Organization (MPO) of the Lubbock urbanized area(s) and which serves 10 as the fiscal agent for the MPO. 11 12 WITNESSETH 13 14 WHEREAS, 23 USC 134 and 49 USC Section 5301 et seq. require that Metropolitan Planning 15 Organizations, in cooperation with the Department and transit agencies, develop transportation 16 plans and programs for urbanized areas of the State; and 17 18 WHEREAS, 23 USC 104(f), authorizes Metropolitan Planning (PL) Funds and 49 USC Section 19 5301 et seq. authorizes funds to be made available to Metropolitan Planning Organizations 20 designated by the Governor to support the urban transportation planning process; and, 21 22 WHEREAS, the federal share payable for authorized activities using 49 USC Section 5303 and 23 metropolitan planning (PL) funds is 80% of allowable costs; and 24 25 WHEREAS, 221.003 and 201.703 Texas Transportation Code authorize the Department to 26 expend federal and state funds for improvements to the State Highway System, and for 27 improvements to roads not on the system of the state highways, as may be necessary for proper 28 construction and prosecution of the work; and, 29 30 WHEREAS, 221.003 and 201.703 Texas Transportation Code authorize the Department to 31 provide the necessary cash or in -kind match of 20% of allowable costs for metropolitan 32 transportation planning for the integrated network of Federal, State, and local roads; and, 33 34 WHEREAS, metropolitan planning (PL) funds, and other federal transportation funds that may 35 be used for planning (e.g., Surface Transportation Program, National Highway System, 36 Congestion Mitigation and Air Quality, etc.) and 49 USC Section 5303 funds are to be used in 37 conjunction with work conducted under the terms of this contract: and, 38 39 WHEREAS, the Governor of the State of Texas has designated the City of Lubbock, acting 40 through their Transportation Policy Committee, for the MPO for the above -mentioned urbanized 41 area(s): and, 42 43 WHEREAS, the Governor of the State of Texas and the City of Lubbock have executed an 44 agreement pursuant to the MPO designation: 45 46 WHEREAS, an area equal to or larger that the above -mentioned urbanized area has been 47 delineated in accordance with federal and state guidelines where required metropolitan 48 transportation planning activities may take place; and, 49 Page 1 50 WHEREAS, 23 CFR 4210117(a) requires that in accordance with 49 CFR 18.40, the State 51 Department of Transportation (DOT) shall monitor all activities performed by its staff or by 52 subrecipients with FHWA planning and research funds to assure that the work is being 53 managed and performed satisfactorily and that time schedules are being met; and 54 55 NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements of 56 the parties hereto to be by them respectively kept and performed, as hereinafter set forth, the 57 Department and the MPO do agree to as follows: 58 59 60 AGREEMENT 61 62 Article 1. Contract Period 63 64 This contract becomes effective July 1, 2006, or when signed by all parties hereto, whichever is 65 later. The Department shall not continue its obligation to the MPO under this contract if the 66 Governor's designation of the MPO is withdrawn; if federal funds cease to become available; or 67 if the contract is terminated as hereinafter provided. 68 69 This agreement expires on September 30, 2012. No fewer than 120 days before the expiration 70 date, the Department may, at its sole discretion, exercise in writing an option to extend the 71 agreement by a period of no more than two years. The Department may exercise this option no 72 more than two times. If all terms and conditions of this contract remain viable; and no 73 amendment to the existing contract; or new contract is required; a letter from the Department to 74 the MPO shall constitute renewal of the contract subject to all terms and conditions herein 75 specified. However, an amendment or a new contract can be executed, if necessary. Any 76 amendment shall be entered into in accordance with Article 33 of this contract. 77 78 79 Article 2. Responsibilities of the Department 80 81 The responsibilities of the Department are as follows: 82 83 1. Make available to the MPO all of the appropriate federal 84 transportation planning funds and provide required non-federal, in- 85 kind matching funds as authorized by the Texas Transportation 86 Commission. Federal transportation planning funds will be 87 distributed to the MPOs based on formulas mutually agreed upon 88 by the Department, the Federal Highway Administration (FHWA), 89 and the Federal Transit Administration (FTA). The Department will 90 consult with TEMPO before agreeing on a formula. 91 92 2. Provide to the MPO, as appropriate, technical assistance and 93 guidance for the collection, processing, and forecasting of socio- 94 economic data needed for the development of traffic forecasts, 95 plans, programs, and planning proposals within the metropolitan 96 area. 97 Page 2 98 3. Collect, process and forecast vehicular travel volume data in 99 cooperation with the MPO, as appropriate. 100 101 4. Jointly promote the development of the intermodal transportation 102 system within the metropolitan area by identifying points in the 103 system where access, connectivity, and coordination between the 104 modes and inter -urban facilities would benefit the entire system. 105 106 5. Share with the MPO, information and information sources 107 concerning transportation planning issues as those issues relate to 108 this contract. 109 110 111 Article 3. Responsibilities of the MPO 112 113 The MPO is an organization created to ensure that existing and future expenditures for 114 transportation projects and programs are based on a continuing, cooperative, and 115 comprehensive planning process. The responsibilities of the MPO are as follows: 116 117 1. Use funds provided in accordance with Article 2, Section 1 of this contract 118 to develop and maintain a comprehensive regional transportation planning 119 program in conformity with the requirements of 23 USC Section 134(f) and 120 49 USC Section 5303. 121 122 2. Assemble and maintain an adequate, competent staff with such 123 knowledge and experience that will enable them to perform all appropriate 124 MPO activities required by law. 125 126 3. Collect, maintain, and forecast appropriate socio-economic, roadway and 127 travel data on a timely basis, in cooperation with the Department. 128 129 4. Prepare all required plans, programs, reports, data and required 130 certifications in a timely manner. 131 132 5. Develop a Metropolitan Transportation Plan (MTP), a Transportation 133 Improvement Program (TIP), and a Unified Planning Work Program 134 (UPWP) for the Metropolitan Planning Area that are consistent with the 135 Statewide Transportation Plan, as required by the state and federal law. 136 At a minimum the MPO shall consider in their planning process the 137 applicable factors outlined in 23 USC Section 134(f). 138 139 6. Share information and information sources concerning transportation 140 planning issues. 141 142 143 Article 4. Responsibilities of the MPO Transportation Policy Committee 144 145 The MPO Policy Committee is the policy body that is the forum established under 23 USC §134 Page 3 146 with the responsibility for establishing overall transportation policy for the MPO and for making 147 required approvals. The MPO Transportation Policy Committee is comprised of those 148 governmental agencies identified in the original designation agreement and those agencies or 149 organizations subsequently added to the membership of the committee. The responsibilities of 150 the MPO Policy Committee are as follows: 151 152 1. Ensure that requirements of 23 USC §§134 and 135 and 49 USC, 153 Chapter 53, are carried out. 154 155 2. Use funds provided in accordance with Article 2, Section 1 of this 156 contract to develop and maintain a comprehensive regional 157 transportation planning program in accordance with requirements 158 of 23 USC §134(f) and 49 USC §5303. 159 160 3. Develop and adopt an MTP for the Metropolitan Planning Area that 161 is consistent with the Statewide Transportation Plan required by 162 state and federal laws; a TIP and a UPWP; and such other 163 planning documents and reports that may be required by state or 164 federal laws or regulations. 165 166 4. The MPO Transportation Policy Committee shall have sole 167 responsibility to hire, supervise, evaluate, and terminate the 168 Transportation Planning Director. 169 170 5. The MPO Transportation Policy Committee shall provide planning 171 policy direction to the Transportation Planning Director. 172 173 174 Article 5. Responsibilities of the Fiscal Agent 175 176 The Fiscal Agent for the MPO is the entity responsible for providing fiscal, human resource and 177 staff support services to the MPO. 178 179 The responsibilities of the fiscal agent are as follows: 180 181 1. Maintain required accounting records for state and federal funds 182 consistent with current federal and state requirements. 183 184 2. Provide all appropriate funding, as identified by fiscal year in the 185 UPWP, to allow the MPO staff to effectively and efficiently operate 186 the program. 187 188 3. Provide human resource services to the MPO. 189 190 4. Provide benefits for the MPO staff that shall be the same as the 191 fiscal agent normally provides its own employees; or as 192 determined through an agreement between the MPO 193 Transportation Policy Committee and the fiscal agent. Costs 194 incurred by the fiscal agent for these benefits may be reimbursed Page 4 195 by the MPO. 196 5. May establish procedures and policies for procurement and 197 purchasing in cooperation with the MPO Transportation Policy 198 Committee. 199 200 201 Article 6. Responsibilities of the Transportation Planning Director 202 203 The responsibilities of the MPO Transportation Planning Director are as follows: 204 205 1. Shall administer the MPO's work program. The Director shall 206 serve in a full-time capacity for Transportation Management Areas. 207 The Director shall take planning policy direction from and be 208 responsible to the designated MPO Transportation Policy 209 Committee. 210 211 2. Shall act as a liaison, relevant to the Department's transportation 212 planning activities, with the Department's district office and the 213 Department's Transportation Planning and Programming Division's 214 representative. 215 216 3. Shall oversee and direct all MPO transportation planning staff work 217 performed using MPO funds. 218 219 4. Shall prepare and submit all required plans, programs, reports, 220 data, and certifications in a timely manner. 221 222 5. Develop and present to the MPO Transportation Policy Committee, 223 an MTP for the metropolitan planning area that is consistent with 224 the Statewide Transportation Plan required by state and federal 225 laws; a TIP and a Unified Planning Work Program; and such other 226 planning documents and/or reports that may be required by state 227 or federal laws or regulations. 228 229 6. Share information and information resources concerning 230 transportation planning issues. 231 232 233 Article 7. Unified Planning Work Program (UPWP) 234 235 1. Each year the MPO shall submit to the Department a program of 236 work that includes goals, objectives and/or tasks required by each 237 of the several agencies involved in the metropolitan transportation 238 planning process. This program of work is to be called the Unified 239 Planning Work Program, or any successor name. Each year's 240 approved UPWP shall be incorporated into this contract by 241 reference. The UPWP shall be approved by the MPO 242 Transportation Policy Committee, in accordance with 23 CFR 243 450.314 (a) (1). Page 5 244 245 2. The UPWP will be prepared for a period of one year unless 246 otherwise agreed to by the Department, the MPO, and the MPO 247 Transportation Policy Committee. The UPWP shall reflect only that 248 work that can be accomplished during the time period of the 249 UPWP, in accordance with 43 TAC 15.4 (b)(6), 23 CFR 420.113 250 (a)(5) and 23 CFR 420.115 (a). 251 252 3. The budget and statement of work will be included in the UPWP. 253 The MPO may not incur costs until final approval of the UPWP is 254 granted. The maximum amount payable will not exceed the budget 255 included in the UPWP. 256 257 4. The effective date of each UPWP will be October 1 of each year or 258 the date of approval from the appropriate oversight agency, 259 whichever occurs later. On that date, the UPWP shall constitute a 260 new federal project and shall supersede the previous UPWP. 261 262 5. The UPWP shall comply with all applicable federal and state 263 requirements and will describe metropolitan transportation and 264 transportation -related planning activities anticipated in the area. 265 266 6. The UPWP shall reflect transportation planning work to be funded 267 by federal, state or local transportation, or transportation -related 268 (e.g., air quality), planning funds. 269 270 7. The use of federal metropolitan transportation planning funds shall 271 be limited to transportation planning activities affecting the 272 transportation system within the Metropolitan Area Boundary 273 (MAB). If an MPO determines that data collection and analysis 274 activities relating to land use, demographics, or traffic or travel 275 information, conducted outside the MAB, affect the transportation 276 system within the MAB, then those activities may be undertaken 277 using federal planning funds, provided that the activities are 278 specifically identified in an approved UPWP. Any other costs 279 incurred for transportation planning activities outside the MAB will 280 not be eligible for reimbursement. 281 282 8. Travel outside the State of Texas by MPO staff and other agencies 283 participating in the MPO planning process shall be approved by 284 the department if funded with federal transportation planning funds. 285 Approval must be received prior to incurring any costs associated 286 with the actual travel (e.g., registration fee). This provision will not 287 apply if the travel is at the request of the department. Travel to the 288 State of Arkansas by the Texarkana MPO staff and travel to the 289 State of New Mexico by the El Paso MPO staff shall be considered 290 in -state travel. 291 292 9. The cost of travel incurred by elected officials will not be eligible for Page 6 293 reimbursement with federal transportation planning funds. 294 295 10. The use of federal transportation planning funds shall be limited to 296 corridor/subarea level planning or multimodal or system wide 297 transit planning studies. Major investment studies and 298 environmental studies are considered corridor level planning. The 299 use of such funds beyond environmental document preparation or 300 for specific project level planning and engineering (efforts directly 301 related to a specific project instead of a corridor) is not allowed. 302 303 11. The Department, in consultation with Texas Metropolitan Planning 304 Organizations, will develop a time line for development of the 305 UPWP. Failure to adhere to the time line may result in a delay in 306 the authorization to the MPO to proceed with incurring costs. 307 308 12. The Department, in cooperation with Texas Metropolitan Planning 309 Organizations, shall develop a standard UPWP format to be used 310 in accordance with 430 TAC 15.4 (a)(4). A UPWP submitted in a 311 different format will not be approved. The UPWP and subsequent 312 amendments may be submitted electronically. 313 314 13. The MPO shall not incur any costs for work outlined in the UPWP 315 or any subsequent amendments prior to receiving written approval 316 from the Department. Any costs incurred prior to receiving 317 approval shall not be eligible for reimbursement from federal 318 transportation planning funds. 319 320 14. If the individual work task cost exceeds the task budget by more 321 than 25 percent, the UPWP shall be revised, approved by the 322 MPO and submitted for approval. 323 324 15. The MPO Policy Committee shall not delegate approval authority 325 of the UPWP or subsequent amendments, except for corrective 326 actions. Corrective actions do not change the scope of work, 327 result in an increase or decrease in the amount of task funding or 328 affect the overall budget, examples include typographical, 329 grammatical or syntax corrections. 330 331 16. Should any conflict be discovered between the terms of this 332 contract and the UPWP, the terms of this contract shall prevail. 333 334 17. The MPO is not authorized to request payment for any work it may 335 perform that is not included in the current UPWP. 336 337 338 Article 8. Compensation 339 340 The Department's payment of any cost incurred hereunder is contingent upon the following: 341 Page 7 342 1. Sufficient federal funds are available to the Department for making 343 payments hereunder. 344 345 2. The incurred cost is authorized in the UPWP. The maximum 346 amount payable under this contract shall not exceed the total 347 budgeted amount outlined in the UPWP in accordance with 43 348 TAC 15.4 (b) (7). 349 350 3. The cost has actually been incurred by the MPO and meets the 351 following criteria: 352 353 (a) is verifiable from MPO records; 354 (b) is not included as match funds for any other federally- 355 assisted program; 356 (c) is necessary and reasonable for the proper and efficient 357 accomplishment of program objectives; 358 (d) is the type of charge that would be allowable under OMB 359 Circular A-87 Revised, "Cost Principles for State, Local and 360 Indian Tribal Governments"; and 361 (e) is not paid by the Department or federal government under 362 another assistance program unless authorized to be used 363 as match under the other federal or state agreement and 364 the laws and regulations to which it is subject. 365 366 4. After October 1 of each year, the Department will issue a work 367 order establishing the effective date of work and the total funds 368 authorized to the MPO. If the UPWP is subsequently revised 369 necessitating a revision to the original work order, or the 370 Department deems a revision necessary, a revised work order 371 may be issued at any time throughout the fiscal year. If the 372 amount in the UPWP differs from the amount in the work order, 373 the amount in the work order prevails. 374 375 5. The MPO is authorized to submit requests for payment of 376 authorized costs incurred hereunder on a semi-monthly basis, but 377 no more than 24 times a year; and no less than monthly as 378 expenses occur. Each request for payment will be submitted in a 379 manner acceptable to the Department, which includes at a 380 minimum the following information: 381 (a) UPWP budget category or line item; 382 (b) description of the cost; 383 (c) quantity; 384 (d) price; 385 (e) extension; and 386 (f) total 387 388 6. The final bill from the previous fiscal year shall be submitted to the 389 Department no later than December 31. Any bills submitted after 390 December 31 will be processed against the current year's UPWP. Page 8 Mi 392 7. Noncompliance with the terms of Article 3 may result in 393 cancellation of work authorization and/or suspension of payments 394 after a 30-day notification by the Department to a Metropolitan 395 Planning Organization's Policy Committee. 396 397 Article 9. Reporting 398 399 To permit program monitoring and reporting, the MPOs shall prepare and submit an annual 400 performance and expenditure report of progress to the Department no later than December 31 401 of each year. A uniform format for the annual report will be established by the Department in 402 cooperation with Texas Metropolitan Planning Organizations. If task expenditures overrun or 403 under -run a budgeted task amount by 25% or more, the annual performance and expenditure 404 report must include an explanation as to why the over -run or under -run occurred. 405 406 407 Article 10. Indemnification 408 409 To the extent possible under state law, the MPO shall save harmless the Department from all 410 claims and liability due to the acts or omissions of the MPO, its agents or employees. To the 411 extent possible under state law, the MPO also agrees to save harmless the Department from 412 any and all expenses, including attorney fees, all court costs and awards for damages, incurred 413 by the Department in litigation or otherwise resisting such claims or liabilities as a result of any 414 activities of the MPO, its agents or employees. 415 416 Further, to the extent possible under state law, the MPO agrees to protect, indemnify, and save 417 harmless the Department from and against all claims, demands and causes of action of every 418 kind and character brought by any employee of the MPO against the Department due to 419 personal injuries and/or death to such employee resulting from any alleged negligent act, by 420 either commission or omission on the part of the MPO or the Department. 421 422 423 Article 11. Inspection of Work and Retention of Documents 424 425 The Department and, when federal funds are involved, the U. S. Department of Transportation, 426 and any authorized representative thereof, have the right at all reasonable times to inspect or 427 otherwise evaluate the work performed or being performed hereunder and the premises in which 428 it is being performed. 429 430 If any inspection or evaluation is made on the premises of the MPO or a subcontractor, the MPO 431 shall provide or require its subcontractor to provide all reasonable facilities and assistance for 432 the safety and convenience of the inspectors in the performance of their duties. All inspections 433 and evaluations shall be performed in such a manner as will not unduly delay the work. 434 435 The MPO agrees to maintain all books, documents, papers, computer generated files, 436 accounting records and other evidence pertaining to costs incurred and work performed 437 hereunder, and shall make such materials available at its office during the time period covered 438 and for four years from the date of final payment under the UPWP. Such materials shall be Page 9 439 made available during the specified period for inspection by the Department, the U.S. 440 Department of Transportation and the Office of the Inspector General of the U.S. Department of 441 Transportation and any of their authorized representatives for the purpose of making audits, 442 examinations, excerpts and transcriptions. 443 444 The state auditor may conduct an audit or investigation of any entity receiving funds from the 445 state directly under the contract or indirectly through a subcontract under the contract. 446 Acceptance of funds directly under the contract or indirectly through a subcontract under this 447 contract acts as acceptance of the authority of the state auditor, under the direction of the 448 legislative audit committee, to conduct an audit or investigation in connection with those funds. 449 450 451 Article 12. Work Performance 452 453 All work performed hereunder shall be carried out in a professional and orderly manner, and the 454 products authorized in the UPWP shall be accurate and exhibit high standards of workmanship. 455 456 457 Article 13. Disputes 458 459 The MPO shall be responsible for the settlement of all contractual and administrative issues 460 arising out of procurement entered into in support of contract work. In the event of a dispute 461 between the Department and the Metropolitan Planning Organization concerning the work 462 performed hereunder in support of the urban transportation planning process, the dispute shall 463 be resolved through binding arbitration. Furthermore, the arbiter shall be mutually acceptable to 464 the Department and the MPO. 465 466 467 Article 14. Non -collusion 468 469 The MPO shall warrant that it has not employed or retained any company or person, other than a 470 bona fide employee working for it, to solicit or secure this contract, and that it has not paid or 471 agreed to pay any company or person, other than a bona fide employee, any fee, commission, 472 percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the 473 award or making of this contract. If the MPO breaches or violates this warranty, the Department 474 shall have the right to annul this contract without liability or, in its discretion, to deduct from the 475 contract price or consideration, or otherwise recover the full amount of such fee, commission, 476 brokerage fee, gift, or contingent fee. 477 478 479 Article 15. Subcontracts 480 481 Any subcontract for services rendered by individuals or organizations not a part of the MPO's 482 organization shall not be executed without prior authorization and approval of the subcontract by 483 the Department and, when federal funds are involved, the U.S. Department of Transportation. If 484 the work for the subcontract is authorized in the current approved UPWP, and if the MPO's 485 procurement procedures for negotiated contracts have been approved by the Department either 486 directly or through self -certification by the MPO, the subcontract shall be deemed to be 487 authorized and approved, provided that the subcontract includes all provisions required by the Page 10 488 Department and the U.S. Department of Transportation. 489 490 Subcontracts in excess of $25,000 shall contain all required provisions of this contract. 491 492 No subcontract will relieve the MPO of its responsibility under this contract. 493 494 Article 16. Termination 495 496 The Department may terminate this contract at any time before the date of completion if the 497 Governor withdraws his designation of the MPO. The Department or the MPO may seek 498 termination of this contract pursuant to Article 13 if either party fails to comply with the conditions 499 of the contract. The Department or the MPO shall give written notice to all parties at least 90 500 days prior to the effective date of termination and specify the effective date of termination. 501 502 The Department may terminate this contract for reasons of its own, subject to agreement by the 503 MPO and the Policy Committee. 504 505 If both parties to this contract agree that the continuation of the contract would not produce 506 beneficial results commensurate with the further expenditure of funds, the parties shall agree 507 upon the termination conditions. 508 509 Upon termination of this contract, whether for cause or at the convenience of the parties hereto, 510 all finished or unfinished documents, data, studies, surveys, reports, maps, drawings, models, 511 photographs, etc., prepared by the MPO shall, at the option of the Department, be delivered to 512 the Department. 513 514 The Department shall reimburse the MPO for those eligible expenses incurred during the 515 contract period which are directly attributable to the completed portion of the work covered by 516 this contract, provided that the work has been completed in a manner satisfactory and 517 acceptable to the Department. The MPO shall not incur new obligations for the terminated 518 portion after the effective date of termination. 519 520 521 Article 17. Force Majeure 522 523 Except with respect to defaults of subcontractors, the MPO shall not be in default by reason of 524 failure in performance of this contract in accordance with its terms (including any failure by the 525 MPO to progress in the performance of the work) if such failure arises out of causes beyond the 526 control and without the default or negligence of the MPO. Such causes may include but are not 527 limited to acts of God or of the public enemy, fires, floods, epidemics, quarantine restrictions, 528 strikes, freight embargoes, and unusually severe weather. In every case, however, the failure to 529 perform must be beyond the control and without the fault or negligence of the MPO. 530 531 532 Article 18. Remedies 533 534 Violation or breach of contract terms by the MPO shall be grounds for termination of the 535 contract. Any costs incurred by the Department arising from the termination of this contract shall Page 11 536 be paid by the MPO. 537 538 This contract shall not be considered as specifying the exclusive remedy for any dispute, but all 539 remedies existing at law and in equity may be availed of by either party and shall be cumulative. 540 541 542 Article 19. Gratuities 543 544 Employees of the Department or the MPO shall not accept any benefits, gifts or favors from any 545 person doing business with, or who may do business with, the Department or the MPO under 546 this contract. 547 548 Any person doing business with, or who may do business with, the Department or the MPO 549 under this contract may not make any offer of benefits, gifts or favors to Department or the MPO 550 employees. Failure on the part of the Department or the MPO to adhere to this policy may result 551 in termination of this contract. 552 553 554 Article 20. Compliance with Laws 555 556 The parties to this contract shall comply with all federal and state laws, statutes, rules and 557 regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any 558 matter affecting the performance of this contract, including without limitation, workers' 559 compensation laws, minimum and maximum salary and wage statutes and regulations, and 560 licensing laws and regulations. When required, the MPO shall furnish the Department with 561 satisfactory proof of its compliance therewith. 562 563 564 Article 21. Successors and Assigns 565 566 The MPO or the Department shall not assign or transfer its interest in this agreement without 567 written consent of the other party. 568 569 570 Article 22. Debarment/Suspension 571 572 The MPO is prohibited from making any award or permitting any award at any tier to any party 573 which is debarred or suspended or otherwise excluded from or ineligible for participation in 574 federal assistance programs under Executive Order 12549, Debarment and Suspension. 575 576 The MPO shall require any party to a subcontract or purchase order awarded under this contract 577 as specified in Title 49 of the Code of Federal Regulations, Part 29 (Debarment and 578 Suspension) to certify its eligibility to receive federal funds and, when requested by the 579 Department, to furnish a copy of the certification. 580 581 582 Article 23. Equal Employment Opportunity 583 Page 12 584 The parties to this contract agree to comply with Executive Order 11246 entitled Equal 585 Employment Opportunity" as amended by Executive Order 11375 and as supplemented in 586 Department of Labor Regulations (41 CFR 60). 587 588 589 590 Article 24. Nondiscrimination 591 592 During the performance of this contract, the MPO, its assigns and successors in interest, agree 593 to the following: 594 595 1. Compliance with Regulations: The MPO shall comply with the 596 regulations relative to nondiscrimination in federally -assisted 597 programs of the U.S. Department of Transportation, Title 49, Code 598 of Federal Regulations, Part 21 and Title 26, Code of Federal 599 Regulations, Part 710.405(b), as they may be amended from time 600 to time (hereinafter referred to as the Regulations), which are 601 herein incorporated by reference and made a part of this contract. 602 603 2. Nondiscrimination: The MPO, with regard to the work performed 604 during the contract, shall not discriminate on the grounds of race, 605 color, sex, national origin, age or disability in the selection and 606 retention of subcontractors, including procurements of materials 607 and leases of equipment. The MPO shall not participate either 608 directly or indirectly in the discrimination prohibited by Section 21.5 609 and Part 710.405(b) or the Regulations, including employment 610 practices when the contract covers a program set forth in 611 Appendix B of the Regulations. 612 613 3. Solicitations for Subcontracts, Including Procurements of 614 Materials and Equipment: In all solicitations either by competitive 615 bidding or negotiation made by the MPO for work to be performed 616 under a subcontract, including procurements of materials or leases 617 of equipment, each potential subcontractor or supplier shall be 618 notified by the MPO [policy committee or fiscal agent] of the MPO's 619 obligations under this contract and the Regulations relative to 620 nondiscrimination on the grounds of race, color, sex, national 621 origin, age or disability. 622 623 4. Information and Reports: The MPO shall provide all information 624 and reports required by the Regulations, or directives issued 625 pursuant thereto, and shall permit access to its books, records, 626 accounts, other sources of information, and its facilities as may be 627 determined by the Department or the U.S. Department of 628 Transportation to be pertinent to ascertain compliance with such 629 Regulations or directives. Where any information required of the 630 MPO [policy committee or fiscal agent] is in the exclusive 631 possession of another who fails or refuses to furnish this Page 13 632 information, the MPO [policy committee or fiscal agent] shall so 633 certify to the Department or the U.S. Department of Transportation 634 as appropriate, and shall set forth what efforts it has made to 635 obtain the information. 636 637 5. Sanctions for Noncompliance: In the event of the MPO's 638 noncompliance with the nondiscrimination provisions of this 639 contract, the Department shall impose such contract sanctions as 640 it or the U.S. Department of Transportation may determine to be 641 appropriate, including but not limited to: 642 643 withholding of payments to the MPO [policy committee or 644 fiscal agent] under the contract until the MPO complies, 645 and/or 646 cancellation, termination, or suspension of the contract in 647 whole or in part. 648 649 6. Incorporation of Provisions: The MPO shall include the 650 provisions of paragraphs 1 through 6 in every subcontract, 651 including procurements of materials and leases of equipment, 652 unless exempt by the Regulations or directives issued pursuant 653 thereto. The MPO shall take such action with respect to any 654 subcontract or procurement as the Department may direct as a 655 means of enforcing such provisions including sanctions for 656 noncompliance; provided, however, in that event, an MPO [policy 657 committee or fiscal agent] may request the United States to enter 658 into such litigation to protect the interests of the United States. 659 660 661 Article 25. Nondiscrimination on the Basis of Disability 662 663 The MPO agrees that no otherwise qualified disabled person shall, solely by reason of his 664 disability, be excluded from participation in, be denied the benefits of, or otherwise be subject to 665 discrimination under the project. The MPO shall insure that all fixed facility construction or 666 alteration and all new equipment included in the project comply with applicable regulations 667 regarding Nondiscrimination. on the Basis of Disability in Programs and Activities Receiving or 668 Benefiting from Federal Financial Assistance, set forth at 49 CFR Part 27, and any amendments 669 thereto. 670 671 672 Article 26. Disadvantaged Business Enterprise Program Requirements 673 674 It is the policy of the U.S. Department of Transportation that Minority Business Enterprises as 675 defined in 49 CFR 26, shall have the maximum opportunity to participate in the performance of 676 contracts financed in whole or in part with federal funds. Consequently the Minority Business 677 Enterprise requirements of 49 CFR 26, apply to this contract as follows: 678 679 The MPO agree to insure that Minority Business Enterprises as Page 14 680 defined in 49 CFR 26, Subpart A, have the maximum opportunity 681 to participate in the performance of contracts and subcontracts 682 financed in whole or in part with federal funds. In this regard, the 683 MPO [policy committee and fiscal agent] shall take all necessary 684 and reasonable steps in accordance with 49 CFR 26, to insure that 685 Minority Business Enterprises have the maximum opportunity to 686 compete for and perform contracts. 687 688 The MPO and any subcontractor shall not discriminate on the 689 basis of race, color, national origin, or sex in the award and 690 performance of contracts funded in whole or in part with federal 691 funds. 692 693 These requirements shall be included (i.e., written literally) in the language of any subcontract. 694 695 Failure to carry out the requirements set forth above shall constitute a breach of contract and, 696 after the notification of the Department, may result in termination of the contract by the 697 Department or other such remedy as the Department deems appropriate. 698 699 700 Article 27. Procurement 701 702 The MPO shall maintain [the approved] written procurement procedures that meet or exceed the 703 requirements of 49 CFR 18, "Uniform Administrative Requirements for Grants and Cooperative 704 Agreements with State and Local Governments," as it may be revised or superseded. These 705 procedures will be used for all acquisitions authorized in any UPWP. 706 707 The MPO agree to comply with applicable Buy America requirements set forth in Section 401 of 708 the Surface Transportation Assistance Act of 1978 (P.L. 95-599) and the Federal Transit 709 Administration's Buy America regulations in 49 CFR 660. 710 711 The MPO agree to comply with the cargo preference requirements set forth in 46 USC 1241 and 712 Maritime Administration regulations set forth in 46 CFR 381. 713 714 715 Article 28. Environmental Protection and Energy Efficiency 716 717 The MPO agrees to comply with all applicable standards, orders or requirements issued under 718 Section 306 of the Clean Air Act (42 USC 1857[h]); Section 508 of the Clean Water Act (33 USC 719 1368), Executive Order 11738 and Environmental Protection Agency regulations (40 CFR, Part 720 15). The MPO further agrees to report violations to the Department. 721 722 The MPO agrees to recognize standards and policies relating to energy efficiency which are 723 contained in the State energy conservation plan issued in compliance with the Energy Policy and 724 Conservation Act (P.L. 94-163). 725 726 727 728 Article 29. Property Management Page 15 729 730 The MPO shall maintain written property management procedures that meet or exceed the 731 requirements of 49 CFR 18, "Uniform Administrative Requirements for Grants and Agreements 732 with State and Local Governments," as it may be revised or superseded. These procedures will 733 be used for any property acquired in whole or in part with federal and state funds provided 734 through this contract. 735 736 Article 30. Audit 737 738 The MPO shall comply with the requirements of OMB Circular A-133, "Audit Requirements for 739 State and Local Governments," and shall promptly furnish the Department a copy of each audit 740 report. The MPO shall be responsible for any funds determined to be ineligible for federal 741 reimbursement, and shall reimburse the Department the amount of any such funds previously 742 provided to it by the Department. 743 744 745 Article 31. Control of Drug Use 746 747 The MPO agrees to comply with the terms of the Federal Transit Administration regulation, 748 "Control of Drug Use in Mass Transportation Operations," set forth at 49 CFR Part 653. 749 750 751 Article 32. Restrictions on Lobbying 752 753 Pursuant to Section 319 of Public Law 101-121, which generally prohibits recipients of federal 754 funds from using those monies for lobbying purposes, the MPO shall comply with the Special 755 Provision "New Restrictions on Lobbying." 756 757 758 Article 33. Amendments 759 760 Any changes to one or more of the terms and conditions of this contract shall not be valid unless 761 made in writing and agreed to by the parties hereto before the change is implemented. 762 763 764 Article 34. Distribution of Products 765 766 The MPO will provide a number of copies to be specified by the Department of all information, 767 reports, proposals, brochures, summaries, written conclusions, graphic presentations, and 768 similar materials developed by the MPO and the Policy Committee and financed in whole or in 769 part as provided herein. All reports published by the MPO shall contain a prominent credit 770 reference to the Department and the U.S. Department of Transportation, Federal Highway 771 Administration and Federal Transit Administration: 772 773 Prepared in cooperation with the Texas Department of Transportation and the 774 U.S. Department of Transportation, Federal Highway Administration and Federal 775 Transit Administration. 776 Page 16 777 Upon termination of this contract, all documents prepared by the MPO or furnished to the MPO 778 and the Policy Committee by the Department, shall be delivered to the Department. All such 779 documents, photographs, calculations, programs and other data prepared or used under this 780 contract may be used by the Department without restriction or limitation of further use. 781 782 783 784 Article 35. Legal Construction 785 786 In case any one or more of the provisions contained in this contract shall for any reason be held 787 to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability 788 shall not affect any other provision thereof and this contract shall be construed as if such invalid, 789 illegal or unenforceable provision had never been contained herein. 790 791 792 Article 36. Prior Agreements 793 794 This contract constitutes the sole and only contract of the parties hereto and supersedes any 795 prior understandings or written or oral agreements between the parties respecting the within 796 subject matter. 797 798 799 Article 37. Copyrights 800 801 The Department and the U.S. Department of Transportation shall, with regard to any reports or 802 other products produced under this contract, reserve a royalty -free, nonexclusive and irrevocable 803 right to reproduce, publish or otherwise use, and to authorize others to use the work for 804 government purposes. 805 806 807 Article 38. Signatory Warranty 808 809 The undersigned signatories hereby represent and warrant that they are officers and that they 810 have full and complete authority to enter into this contact. 811 812 IN WITNESS WHEREOF, the undersigned have caused this contract to be executed, but the 813 contract shall not be valid until signed by a duly authorized representative of each party. The MPO Policy Committee By: I�'J Title: Chairman, MPO Transportation Policy Committee / Date: lB / 2 - c-7b/ The Fiscal Agent f>S� yid A. Miller Title: Mayor Date: June 26, 2006 Page 17 THE STATE OF TEXAS Executed for the Executive Director, and approved for the Texas Transportation Commission, for the purpose and effect of activating andlor carrying out the orders, established policies or work programs heretofore approved and authorized by the Texas Transportation Commission. By Dire r, Transportation Planning an rogramming Division Date �a� For the purpose of this contract, the following addresses shall be used to mail all required notices, reports, claims, and correspondence: For the TxDOT Transportation Planning and Programming Division: P.O. Box 149217 Austin, Texas 78704-9217 For the TxDOT District Study Office: 135 Slaton Highway Lubbock, Texas 79404 For the Fiscal Agent of the MPO: City Manager P.O. Box 2000 Lubbock, Texas 79457 For the Policy Committee of the MPO: Transportation Planning Director 916 Main, Suite 706 Lubbock, TX 79401 Page 18